Does the President have the authority to appoint senior counsel

19th March 2013

The conferral of ‘silk’ or ‘senior counsel’ status on practising advocates was the subject of a Supreme Court of Appeal (SCA) judgment handed down on Friday morning. In General Council of the Bar v Mansingh, the SCA considered whether the executive powers given to the President in terms of section 84(2)(k) of the Constitution included the conferral of the status of silk on an advocate. 

According to Xolani Ntamane, candidate attorney at pan-African law firm Bowman Gilfillan, the case arose from an application by Adv Mansingh, an admitted and practising advocate and a member of the Johannesburg Bar.

“The Pretoria High Court had found in favour of Adv Mansingh, ruling that the President did not have the right to confer silk status, thus potentially ending a practice that is as old as the Bar.  On appeal, the SCA refused to be drawn into an argument as to whether the institution of silk was a good or bad thing, it noted that Adv Mansingh made it clear that she actively sought to abolish the system of conferring silk as practising advocates like her, who applied for silk but were unsuccessful, suffered a real disadvantage in their practices and great distress,” said Mr Ntamane.

In her application, Adv Mansingh argued that the power given to the President to confer honours does not include the power to confer the status of silk or senior counsel.

Adv Mansingh also argued before the SCA that the institution of silk itself infringes on the rights of non-silks. This argument was not given a factual basis and the court consequently did not consider it at length. The SCA stated that if the concern lies with practices that afford certain privileges to silks, then an objection should be made against those practices and not against the institution of silks, as they are not inherent to receiving the honour of silk.

The SCA described the process of conferring silk as follows; the candidate makes an application to the relevant Bar. The application is then considered by a committee of silks of that Bar. Thereafter the names of the approved candidates are presented to the Judge President of the particular High Court who makes a recommendation to the Minister of Justice, who in turn makes a recommendation to the President. The appointments are then noted in the Presidential minute with the counter-signature of the Minister.

Mr Ntamane commented: “The SCA disagreed with the argument that this process amounted to a certification of the professional quality of the candidate.  Rather, it adopted the view that the conferral of silk by the President was merely a recognition of the esteem in which the recipients are held by their peers. The SCA found that the conferral of silk was in line with the authority to confer honours given to the President in terms of the Constitution.

“While the SCA accepted that other professionals such as attorneys and accountants are not afforded such an honour when they advance in status, it in its reasoning relied on the historical context of the appointment of silks and concluded that the historical distinction stems from the fact that the legal profession and its institutions have traditionally been regarded as integral to the administration of justice, which in turn has always been the concern of the head of State.”